STATE OF NEW JERSEY v. CALVIN HIGHTOWER

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1237-21

STATE OF NEW JERSEY,

Plaintiff-Appellant,

CALVIN HIGHTOWER,

Defendant-Respondent.
_________________________

Submitted March 28, 2022 – Decided April 12, 2022

Before Judges Sabatino and Mayer.

On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Camden County,
Indictment No. 21-03-0504.

Grace C. MacAulay, Camden County Prosecutor,
attorney for appellant (Kevin J. Hein, Assistant
Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for
respondent (Timothy W. Dalton, Jr., Assistant Deputy
Public Defender, of counsel and on the brief).

PER CURIAM
On leave granted, the State appeals the trial court's November 18, 2021

order suppressing certain self-incriminating statements that defendant Calvin

Hightower made to police detectives during the course of a custodial

interrogation. We affirm.

Defendant has been charged in a two-count indictment with first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7), and second-degree sexual

assault, N.J.S.A. 2C:14-2(c)(1). The charges stem from an incident outside of

the Walter Rand Transportation Center that occurred in the early morning hours

of June 19, 2020. After the incident was reported to police, defendant was

arrested that same morning. He was taken to the administration building of the

Camden County Police Department, given Miranda1 warnings, and questioned

by two detectives. During the second segment of that interrogation, defendant

made certain admissions, which the State wishes to admit against him at trial.

Defendant moved to suppress the statements. The trial court conducted

an evidentiary hearing at which one of the detectives testified. Upon considering

that testimony and other evidence, the court issued an oral opinion concluding

that defendant's admissions must be suppressed, because the detectives had

1
Miranda v. Arizona, 384 U.S. 436 (1966).
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2
improperly induced him during the interrogation to confess. This appeal by the

State ensued.

The trial court found the following facts, solely for the purposes of the

suppression hearing. We adopt those facts here, likewise for the sole purpose

of reviewing the suppression ruling.

From about 11:00 p.m. on June 18, 2020, to about 5:00 a.m. the following

morning, K.M., the alleged victim, was sleeping on the steps outside of a bank

at the William Rand Transportation Center in Camden with her boyfriend, W.D.2

Both K.M. and W.D. were homeless at that time.

At some point, W.D. left to buy cigarettes. In his absence, while K.M.

was still asleep, defendant non-consensually put his hands down K.M.'s pants

and groped her. She awoke, mistakenly assuming it was her boyfriend. When

she turned over and saw defendant, she immediately screamed. Defendant

quickly left the scene. When W.D. returned, K.M. told him what happened.

Later that morning, at approximately 9:00 a.m., K.M. spotted defendant at

the transportation center. K.M. then told two female friends what she believed

2
We use initials to protect the alleged victim's identity.
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3
defendant had done to her earlier that morning. The two friends then told a male

friend, who approached defendant and physically assaulted him.

Police were called to the transportation center to respond to that

encounter. At approximately 9:18 a.m., K.M. told the responding police officers

that defendant had allegedly assaulted her earlier that morning, and that she had

seen defendant in the past but that she did not know him.

Defendant was arrested and both he and K.M. were brought to the Camden

County Police Department for further questioning.

Upon arriving at the department, Detective Erica DiLolle, of the Camden

County Police Department, conducted an audio-recorded questioning of K.M.

about the earlier non-consensual incident with defendant.

The detectives began their interrogation of defendant at 10:35 a.m.

Defendant was shirtless and remained so during his time in custody. 3 The first

portion of the interrogation took place between 10:35 a.m. and 10:47 a.m.4 The

next segment of the interrogation occurred from 11:19 a.m. to 12:17 p.m., at

3
Defendant explained to detectives during the pre-confession interrogation that
he left his house that morning without a shirt because he did laundry the night
before and his clothes were still wet.
4
Defense did not move to suppress any of the statements he made during this
first segment.
A-1237-21
4
which point the defendant requested to and did use the bathroom. Towards the

end of this segment, defendant admitted that he had engaged in illegal sexual

conduct with the alleged victim. When he returned from the bathroom break,

the detectives' questioning continued for another forty minutes until 12:57 p.m.

We focus on the interrogation from the start of the second segment.

Before the second segment of the interrogation began, the detectives again

read to defendant his Miranda warnings, and asked him to write his initials on

the accompanying form confirming that he understood his rights. Defendant

then waived these rights, both orally and by signing the accompanying form.

As noted, the second segment of the interrogation began at 11:19 a.m.

Detectives DiLolle and M. Rivera of the Camden County Police Department

conducted the questioning. At the beginning, Detective DiLolle reminded

defendant they had spoken briefly with him, approximately thirty minutes

earlier, about the alleged victim's allegations against him. The detectives

advised defendant that they were going to talk to him now "about a sexual assault

and a . . . sexual contact." Detective Rivera explained that in addition to the

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5
alleged incident on which they had previously interrogated him, she planned to

interview him about a different alleged sexual assault. 5

The detectives first asked defendant about what he did that morning. He

initially denied walking near the bank in front of which the alleged victim was

sleeping. He then backtracked and admitted that he had walked past the bank,

but did not go inside. He denied talking to anyone or even stopping in front of

the bank.

After Detective DiLolle told defendant that they had video camera footage

of him assaulting the alleged victim, he continued to deny stopping at the bank

and lying down next to her.6 He first denied knowing the alleged victim, but

then said he had seen her two times, including the day before, when he had asked

her if she had a cigarette or K2, a synthetic cannabinoid.

The following exchange then occurred:

5
Defendant did not learn until about an hour later, after he returned from his
bathroom break, that Detective Rivera's "separate case" concerned the alleged
sexual assault of a fifteen-year-old girl in April 2020. Defendant was not
questioned about this other matter until after he returned from the bathroom, and
was reissued Miranda warnings. He denied involvement in that incident, and it
is not pertinent here.
6
Defendant asserted he had not taken any drugs or consumed any alcohol that
morning.
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6
DETECTIVE RIVERA: Alright[,] so can you explain
to us why they have you on camera at [the] Bank and
why they have you laying down with this chick?

DEFENDANT: I don't even know.

DETECTIVE RIVERA: Can you please explain that to
me?

DEFENDANT: I'm tryna explain it, I'm explaining
now.

DETECTIVE RIVERA: You gotta we, we, try harder.

DEFENDANT: I'm trying.

DETECTIVE RIVERA: We tryna help you out.[7]

DEFENDANT: I know, I know.

DETECTIVE RIVERA: 'Cause we, we ya know we try,
we, we tryna uhm understand why you were there. If
you were invite-

DEFENDANT: I asked for K2 or a cigarette, that's why
I was there 'cause if they usually have it right there but
since they locked down that, locked down the . . . Bank
and the parking lot.

[(Emphasis added).]

Detective Rivera then brought the questioning back to defendant's

whereabouts that morning. She asked him again whether he knew the alleged

[7]
This is the first comment by Detective Rivera that defendant argues was
improper and induced him to make an involuntary confession.
A-1237-21
7
victim or had any interaction with her. Detective Rivera further asked defendant

if he had any "urges" that morning that caused him to engage in sexual activity

with the alleged victim, which he denied having.

Detective Rivera pressed further, continuing to ask defendant why he was

on camera lying next to the alleged victim, and whether she had consented to

him doing that. He denied again that he was involved, insisting that he was

being "honest" and was telling the detectives "everything [he] kn[e]w."

At that point, defendant admitted that he did see a woman lying down by

the bank earlier that morning, and that he asked her if she had any cigarettes or

K2, but she told him she did not sell drugs. 8 Defendant described the woman as

"short," "skinny," and "light skin[ned]." Evidently, defendant's description of

the woman he saw outside the bank matched the appearance of the alleged

victim, because in response, Detective Rivera said, "[W]e [are] doing progress

here . . . We [are] doing real good progress." The detective added that she

"love[s] it" and that "We're doing good . . . . We [are] doing good."

Detective Rivera asked defendant if the woman he saw was under a

blanket, and defendant said yes. Defendant assured detectives that after the

8
Many times in this exchange defendant said the events happened that morning,
and at other times he said they occurred the evening before. His responses were
frequently contradictory and hard to follow.
A-1237-21
8
woman told him she did not have any drugs, he left to go buy K2 somewhere

else. He claimed he then went home. When asked how he pays for rent,

defendant told the detectives he does not work because he receives Social

Security disability benefits.

Returning the discussion to the incident, the detectives again asked

defendant why he decided to lie down with the alleged victim, and whether he

slept with her. Defendant denied both queries, telling the detectives that he had

a "girl[friend]." When asked why the alleged victim would lie about him

touching her, he responded, "I don’t know [why] they don’t like me. They say

I be stealin' and, and, and I used to be out there homeless." He did not specify

who "they" were, and he denied having stolen anything from "them."

Pressing for more details, the detectives asked defendant to describe how

the woman was sleeping, whether she was wearing pajamas, and what color her

quilt was. Defendant replied that the alleged victim was sleeping under a blue

quilt, and she was lying on her side in a fetal position. He told the detectives

that he offered her a cigarette, but she told him she didn’t smoke, and he went

off to buy some K2.

Detective Rivera then asked, "So tell me when you (inaudible) yourself

through that blanket," and "[h]ow did you creep up under, underneath t he

A-1237-21
9
blanket?" Defendant denied doing either of those things. Detective Rivera

became frustrated with him, telling him that he is a "full grown ass man" and

that he better tell her the "whole truth."

Defendant repeated that he asked the woman if she sold K2 or cigarettes,

she said no, she went back under the covers, and he "walked off." Detective

Rivera continued to press him about the "missing piece" he was not telling them:

DETECTIVE RIVERA: Alright . . . the piece that I'm
missing is when we see you laying next to her.

DEFENDANT: Yes.

DETECTIVE RIVERA: That's the piece that we're
missing.

DEFENDANT: Ok.

DETECTIVE RIVERA: So you're doing good.

DEFENDANT: Yes.

DETECTIVE RIVERA: You're telling me the truth and
I respect that.

DEFENDANT: Yes.

DETECTIVE RIVERA: I respect that you telling me
the truth at the end of the day, ok? Because this is what
we're here for.

DEFENDANT: Yes.

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10
DETECTIVE RIVERA: We're not tryna screw you.[9]

DEFENDANT: Ok.

DETECTIVE RIVERA: But we need to know what
happened.

DEFENDANT: Yes.

DETECTIVE RIVERA: So we can do things right.

DEFENDANT: Yes.

[(Emphasis added).]

After this exchange, defendant admitted to having lain down with the

alleged victim because he was tired and cold because he was not wearing a shirt.

He stated he felt comfortable enough to lie down next to her because that was

his "neighborhood." He explained to the detectives that when he was homeless,

it was common practice to lie down with other people who were also

experiencing homelessness.

Defendant continued to deny that he touched the woman inappropriately

when lying beside her. He said they were positioned "butt-to-butt." When asked

if he got aroused, defendant initially said no, and denied that he was physically

attracted to her. He said the alleged victim did not say anything to engage him

[9]
This is the second comment that defendant identifies as undermining the
Miranda warnings.
A-1237-21
11
in sexual activity. He continued to deny digitally penetrating her and told

detectives he knew doing that without her permission is wrong.

Detective Rivera asked defendant if he had accidentally touched the

woman, which he also denied. Defendant said he did not get under the covers

with her; he just smoked a cigarette and then left.

This prompted Detective DiLolle to ask defendant why he chose to lie

down with the woman if he had somewhere to stay. Defendant then changed his

answer from before about being tired and cold, and told the detectives he thought

he recognized the woman and that she was his friend.

In an effort to pin down defendant's account, the detectives again asked

defendant why he touched the woman. In response, defendant admitted that he

had thought about touching her:

DETECTIVE DILOLLE: Did you get turned on by
something or you kind of looked at her?

DEFENDANT: I think so, no I ain't look at her.

DETECTIVE DILOLLE: Ok you said you might've
gotten turned on?

DEFENDANT: Yes.

DETECTIVE DILOLLE: What could've turned you on?

DEFENDANT: Her looks.

A-1237-21
12
Detective Rivera told defendant that it would be okay to touch the woman

if she consented, but he continued to deny that he touched her.

DETECTIVE RIVERA: Ok, so we, we do accept the
fact that it's wrong to touch her?

DEFENDANT: Yes.

DETECTIVE RIVERA: So were you wrong to touch
her?

DEFENDANT: Yeah, yeah I didn't touch her though.

DETECTIVE RIVERA: Yeah you touched her.

DEFENDANT: No . . . you can do [a] DNA test.

DETECTIVE RIVERA: Calvin, Calvin we, we not
playing that, we know what we could do.

The interrogation continued in this manner for a while longer, until finally

defendant confessed to touching the woman's vagina. Through repeated queries,

the detectives prompted defendant to confirm and clarify this admission.

Defendant did, but continued to deny that he digitally penetrated her.

Then defendant asked to go to the bathroom. Before allowing him to do

so, Detective Rivera asked several more questions, which apparently were

related to the April 2020 incident.

After he returned from the bathroom, defendant was re-administered

Miranda warnings a third time. During this final segment of questioning,

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13
Detective Rivera made about a half dozen similar assurances to defendant that

they were trying to "help" him. In particular, Detective Rivera told defendant

that they might be able to refer him to a drug rehabilitation facility, and at the

end of that round of questioning, he asked them for its phone number. As we

have already noted, the questions during this final segment did not concern the

present case.

In his bench ruling, the motion judge concluded that Detective Rivera's

comments to defendant violated his constitutional rights by contradicting the

protections enumerated in the Miranda warnings, and thereby induced an

involuntary confession from him. Specifically, the judge deemed inadmissible

the entire contents of the interrogation starting with Detective Rivera's

statement, "We're trying to help you out," through the end of the interrogation

that occurred after defendant returned from the bathroom.

The judge summarized the course of defendant's admissions as follows:

During the interrogation, the defendant initially denies
the sexual assault, consistently answering in the
negative when asked if he had any contact with the
alleged victim. As the interrogation continu[es] the
defendant begins to make small concessions. First the
defendant admits to asking the victim for a cigarette or
K-2. Then the defendant admits to lying down next to
the victim because he was cold and did not have a shirt
on. Lastly, the defendant ultimately admits to trying to
touch the victim’s vagina with two fingers on his right

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14
hand, but she woke up and told him to get off her. At
approximately 12:17 [p.m.], defendant is given a
bathroom break at his request and is verbally given his
Miranda Rights an additional third time . . . .

The judge went on to discuss the improper assurances the officers repeated

to defendant after he returned from the bathroom. The judge singled out eight

comments in total, six of which were said after defendant confessed to the

conduct alleged by the victim. The judge concluded that "it is clear that the

tactics of the questioning detectives [used] in undermining the Miranda

warnings were effective because the defendant actually starts to loo k to the

detectives for help when responding to their questions agreeing he needs the

detectives' help for rehab."

The judge elaborated that "[l]ooking at what was said to the defendant

during the second question[ing], taken in totality, the court finds the questioning

was incorrect and directly contradicted the Miranda warning that anything the

suspect says can be used against him a court of law." On this point of law, the

judge cited State v. Puryear, 441 N.J. Super. 280, 288, 298 (App. Div. 2015)

(holding that a detective's comments, "The only thing you can possibly do here

is help yourself out. You cannot get yourself in any more trouble than you're

already in. You can only help yourself out here[,]" contradicted a key Miranda

warning and warranted the suppression of the defendant's confession).

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15
II.

In this ensuing appeal, the State argues that the judge erred in his analysis

finding that the detective's comments to defendant undermined the efficacy of

the Miranda warnings. The State contends the judge improperly considered the

questioning conducted after the bathroom break as being part of the "second "

interview, and that such questioning should instead be regarded as part of an

independent "third" interview. Separating the interview phases in this manner,

the State argues that the court should not have considered any improper

statements the detectives said in the "third" segment as affecting the propriety

of the questioning and defendant's admissions during the earlier "second"

segment.

We consider the issues presented on appeal under well-settled principles

of law and appellate review of suppression rulings.

The basic principles of the Miranda doctrine in safeguarding a defendant's

privilege against self-incrimination during a custodial interrogation have been

repeatedly expounded in case law and statutes. "The right against self-

incrimination . . . guaranteed by the Fifth Amendment to the United States

Constitution and this state's common law [is] now embodied in statute, N.J.S.A.

2A:84A-19, and evidence rule, N.J.R.E. 503." State v. Diaz, __ N.J. Super. __,

A-1237-21
16
__ (App. Div. 2022) (slip op. at 19) (quoting State v. S.S., 229 N.J. 360, 381-82

(2017)).

In Miranda v. Arizona, the United States Supreme Court held that in order

to protect the Fifth Amendment right against self-incrimination, a person may

not be subjected to custodial interrogation 10 by law enforcement unless he or she

is apprised of certain rights. 384 U.S. at 467. In particular, law enforcement

must inform such a person:

that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he
has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.

[Id. at 479.]

The Court in Miranda further required that statements made to law

enforcement during a custodial interrogation be excluded at trial, unless it is

shown that the defendant waived his rights "voluntar[ily], knowing[ly] and

intelligent[ly]." State v. Hubbard, 222 N.J. 249, 265 (2015). The prosecution

bears the burden of proving a defendant's voluntary waiver of his right against

self-incrimination beyond a reasonable doubt. Id. at 267. In making that

10
It is not contested that defendant was in custody at this time or that he received
the requisite Miranda warnings.
A-1237-21
17
assessment, our courts must look at the "totality of circumstances" involved.

State v. Nyhammer, 197 N.J. 383, 402 (2009).

The waiver of a defendant's right to remain silent during custodial

interrogation may at times result in a confession. Such a confession is

admissible at trial if, among other things, it was given freely by the defendant,

without his will being overborn. State v. Galloway, 133 N.J. 631, 654 (1993).

If a patent constitutional violation has not been shown, courts "look at the

totality of the circumstances, including both the characteristics of the defendant

and the nature of the interrogation[,]" as well as "relevant factors," including the

defendant's

age, education and intelligence, advice [given to him by
law enforcement] concerning constitutional rights,
length of detention, whether the questioning was
repeated and prolonged in nature, and whether physical
punishment and mental exhaustion were involved.

[Ibid. (citing Schneckloth v. Bustamonte, 412 U.S. 218,
226 (1973)).]

A "free and voluntary confession is not one extracted by threats or violence, nor

obtained by any direct or implied promises, however slight, nor by the exertion

of any improper influence." State v. L.H., 239 N.J. 22, 44-45 (2019) (quoting

Brady v. United States, 397 U.S. 742, 753 (1970) (internal quotation marks

omitted)).

A-1237-21
18
Case law has recognized that law enforcement officers commonly use

various tactics to obtain confessions from defendants, some of which are

"deceptive." However, "[a] confession induced by deception or trickery is not

inadmissible unless the method used was calculated to produce an untruthful

confession or was offensive to due process." State v. Manning, 165 N.J. Super.
19, 30-31 (App. Div. 1978). "The fact that the police lie to a suspect does not,

by itself, render a confession involuntary." Galloway, 133 N.J. at 655. For

example, law enforcement officers are permitted to tell a suspect that they have

more incriminating evidence than they actually do. See ibid. (citing Frazier v.

Cupp, 394 U.S. 731 (1969)). However, law enforcement officers cannot

fabricate incriminating physical evidence and present it to a suspect during an

interrogation. See State v. Patton, 362 N.J. Super. 16, 18 (App. Div. 2003).

Interrogating officers are permitted to appeal to a suspect's "sense of

decency" and urge a suspect "to tell the truth for his own sake." L.H., 239 N.J.

at 44 (citing Galloway, 133 N.J. at 655; State v. Miller, 76 N.J. 392, 405 (1978)).

However, "certain lies . . . may have the capacity to overbear the suspect's will

and to render a confession involuntary." L.H., 239 at 27. An example of such

lies "are false promises of leniency." Ibid. It is also improper for law

A-1237-21
19
enforcement to minimize the severity of the crime that the defendant allegedly

committed. Id. at 44.

Further, case law makes clear it is also improper for law enforcement to

contradict any of the Miranda warnings in their representations to a suspect

during custodial interrogation. See State in Interest of A.S., 203 N.J. 131, 151

(2010) (quoting State v. Pillar, 359 N.J. Super. 249, 268 (App. Div. 2003) ("A

police officer cannot directly contradict, out of one side of his mouth, the

Miranda warnings just given out of the other.")); see also Puryear, 441 N.J.

Super. at 288 (same).

In evaluating the motion judge's application of these interrogation

principles here, we are guided by established standards of appellate review. We

review a trial court's factual findings from the suppression hearing on

defendant's self-incrimination claims under "a deferential standard." State v.

Stas, 212 N.J. 37, 48 (2012). Our appellate function, as it concerns the facts, is

to consider "whether the findings made could reasonably have been reached on

sufficient credible evidence present in the record." Id. at 49 (quoting State v.

Locurto, 157 N.J. 463, 471 (1999)). We must give "deference to those findings

of the trial judge which are substantially influenced by his opportunity to hear

and see the witnesses and to have the 'feel' of the case, which a reviewing court

A-1237-21
20
cannot enjoy." Ibid. (quoting Locurto, 157 N.J. at 471). By comparison, our

appellate review is plenary "with respect to legal determinations or conclusions

reached on the basis of the facts." Ibid.

Applying these principles, we affirm the trial court's sound conclusion that

the detectives who conducted the interrogation of defendant improperly

contradicted the Miranda warnings issued to him, in a manner that rendered his

admissions involuntary and inadmissible as a matter of law.

In analyzing the issues, we need not rely upon the half dozen additional

improper assurances Detective Rivera made to defendant after he returned from

the bathroom break, which the State calls the "third" phase of the interview. We

recognize that those additional improprieties arguably can be considered

evidence of an overall design by the officers to contradict the Miranda warnings

and coax defendant into making self-incriminating statements. However, we

also recognize that these additional improprieties occurred after defendant had

already confessed to the conduct on which K.M.'s allegations against him were

based. Thus, we shall assume for sake of discussion, without deciding, that

those post-confession inducements are not relevant to the analysis of what

preceded the confession.

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21
Nevertheless, the improper statements the officers made to defendant

before he confessed, i.e., about trying to "help" him and not trying to "screw"

him, provide ample factual support for the trial court's decision to suppress

defendant's admissions. The trial court correctly regarded those comments as

improper and misleading contradictions of the mandated Miranda warnings.

The detective's comments at issue here are similar to comments the Court

declared improper in L.H. The defendant in L.H. was taken into custody at 2:30

a.m. on suspicion that he had sexually assaulted two women, and attempted to

sexually assault another. 239 N.J. at 28. A three-hour interrogation began at

5:31 a.m. Id. at 30. After an hour, the defendant incriminated himself in all

three crimes. Ibid.

During his interrogation, the detectives told L.H. he had a "problem," i.e.,

a sex addiction. Id. at 31. The Court summarized detectives' suggestions to

defendant, "if defendant cooperated and incriminated himself, he would receive

counseling and help, not go to jail, and remain free to raise his child." Ibid. The

Court found that, "[t]he promises of 'help' and 'counseling' became a consistent

theme of the interrogation." Ibid. One of these exchanges included:

DETECTIVE KRENTZ: We want to get you the help
that you need.

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22
DETECTIVE FANO: You need some help, dude. You
got a problem.

DETECTIVE KRENTZ: We want to make sure you get
the right help.

DETECTIVE FANO: We're here to help you.

[Ibid. (emphasis added).]

The Court found these statements in L.H. were "false promises of leniency that

assured counseling instead of incarceration," and "conflicted with the Miranda

warnings." Id. at 28. These sufficiently "overbore defendant's will," and the

State could not prove that his confession was voluntary beyond a reasonable

doubt. Id. at 29.

Similarly in this case, after pressing defendant to explain "why they have

[him] on camera at [the] Bank . . . laying down with this chic[,]" Detective

Rivera assured defendant, "We tryna help you out." After asking defendant to

provide the "missing piece," (apparently that being to confess to having lain next

to the alleged victim and touching her vagina), Detective Rivera said, "We're

not tryna screw you."

By couching her implorations for defendant to confess to the "missing

piece" as a form of "help," and assuring him that confessing would not "screw"

A-1237-21
23
him, the detective improperly contradicted and neutralized the Miranda warning

that defendant's "words could be used against him."

Although the State's brief attempts to impute a benign interpretation to the

detective's terminology, the trial court had reasonable grounds to find the

detective's assurances were improper and that they unacceptably undermined the

Miranda warnings. Defendant surely was not "helped" in his case by confessing

to a serious first- or second-degree crime. That is exactly why the State wishes

to admit his confession in its prosecution. 11

The detective's improper assurances were made at a pivotal juncture of the

interrogation, on the verge of defendant's most self-inculpatory admissions. Up

to that point, defendant had wavered and backtracked on much of his narrative.

We are mindful that the motion judge did not find, as the Court did in

L.H., that the officers during the second interview segment "minimized" the

sexual offenses. We are also cognizant that the judge treated the detective's

improper statements as per se grounds to suppress defendant's confession, and

that he declined to base suppression upon defendant's alternative argument of a

11
We recognize the State has other proofs of defendant's guilt, including the
video and the potential testimony of the alleged victim, and that defendant's
confession may not be essential to meeting the State's burden of proof. In any
event, the State may not use the statements the trial court justifiably suppressed.
A-1237-21
24
coercive "totality of the circumstances." 12 Even so, we are satisfied the judge

had a sufficient factual and legal justification for his suppression ruling.

Moreover, the judge's decision is aligned with the public policy concerns

expressed in case law, emphasizing the importance of deterring excessive police

practices during custodial interrogations. See, e.g., State v. Whittington, 142 N.J. Super. 45, 50 (App. Div. 1976) (noting that suppressing involuntary

confessions serves the dual purposes of deterring lawless police conduct and

keeping out of trial unreliable evidence).

Affirmed. The matter is remanded to the trial court for continuation of

the proceedings in this criminal case.

12
As we have noted, in an earlier portion of his ruling, the judge did observe
that "[l]ooking at what was said to the defendant during the second
question[ing], taken in totality . . . the questioning was incorrect and directly
contradicted the Miranda warning that anything the suspect says can be used
against him a court of law." (Emphasis added). The oral decision does not
reconcile these observations about totality.
A-1237-21
25

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